MEMORANDUM AND ORDER RE: TIMBER COVE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT; TIMBER COVE DEFENDANTS' MOTION FOR RECONSIDERATION; FIRST RESORT'S MOTION TO DISMISS
SHUBB, District Judge.
Plaintiff alleges that defendants violated Title III of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and various California statutes. Defendants Best Western Timber Cove Lodge, Robert Maloff, Lisa Maloff, George Karadanis and Elise Karadanis (collectively, the "Timber Cove defendants") now move for summary judgment on the ADA claim on the grounds that it is moot, and request that the court dismiss the remaining state claims. Defendant First Resorts Hotel and Restaurant Services of Lake Tahoe ("First Resorts") moves to dismiss the case, also on the grounds that it is moot.
I. Factual and Procedural Background
Plaintiff is a person with disabilities who requires a wheelchair for mobility. (Pickern Decl. ¶ 1.) The Timber Cove Defendants allegedly own and operate the Best Western Timber Cove Lodge in Lake Tahoe ("Timber Cove"). First Resorts leases space from the Timber Cove defendants, including the restaurant formerly known
After encountering a number of barriers to access at the restaurant, marina, and in the hotel generally while visiting Timber Cove, plaintiff sued defendants. Her lawsuit seeks injunctive relief under the ADA, and damages under the California Disabled Persons Act, Cal. Civ.Code § 54 et seq., the Unruh Civil Rights Act, Cal. Civ. Code § 51, et seq., and California Health & Safety Code § 19955, et seq.
Since plaintiff initiated her lawsuit, the Timber Cove defendants have made numerous alterations and repairs to the hotel, restaurant, and marina in an effort to remove the barriers to access identified by plaintiff. On December 21, 2001, the Timber Cove defendants filed a motion for summary judgment arguing, among other things, that plaintiff's claim for injunctive relief under the ADA was moot. Although the Timber Cove defendants had remedied most of plaintiff's concerns, this court denied the motion on the grounds that a triable issue of fact existed as to whether barriers to access remained in the bathrooms of rooms 315 and 318 at Timber Cove. See Pickern v. Best Western Timber Cove Lodge, No. Civ. S 00-1637 WBS/DA, 2002 WL 202442 (E.D.Cal. Jan 15, 2002) (hereinafter "Pickern I"). Specifically, there was a disputed, material question of fact as to whether there was adequate turning space in these bathrooms, and whether removal of this barrier would be readily achievable by taking out the existing bathtubs and installing prefabricated roll-in showers. See id.
After this court's ruling, the Timber Cove defendants removed the bathtubs in rooms 315 and 318, installed pre-fabricated roll-in showers, and again moved for summary judgment on the grounds that plaintiff's ADA claim is moot. (Maloff Decl. ¶¶ 3,4).
Plaintiff concedes, as she must, that defendants' latest remedial efforts have rendered her ADA claim for injunctive relief moot. (Pl's Opp'n at 3.) ("[P]laintiff is satisfied that her equitable claims have been resolved in their entirety."); see Friends of the Earth, Inc. v. Laidlaw Environmental Services, 528 U.S. 167, 190, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (a claim for injunctive relief is moot if "it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to occur"). Therefore, the only issue before the court is whether to retain jurisdiction over the state law claims.
A. Federal Question Jurisdiction
Plaintiff contends that this court has federal question jurisdiction over her state claims for damages. A court has federal question jurisdiction over a claim if: 1) federal law creates the cause of action; 2) under the artful pleading doctrine, the plaintiff's state law claims should be recharacterized
Plaintiff's contention is that federal question jurisdiction exists because her state law claims turn on a "substantial, disputed federal question" of whether defendants violated the ADA. After the ADA was passed in 1990, the California Disabled Persons Act and the Unruh Civil Rights Act were amended to provide that a violation of the ADA constitutes a violation of their provisions. See Cal. Civ.Code § 54.1(d); Cal. Civ.Code § 51(f). Thus, a plaintiff whose rights are violated under the ADA may now seek damages under the California statutes. Boemio v. Love's Restaurant, 954 F.Supp. 204, 208-09 (S.D.Cal.1997). Plaintiff argues that after the incorporation of the ADA into state law, federal question jurisdiction exists any time an ADA violation provides the only basis for the state claim.
Plaintiff initially raised this argument in connection with the Timber Cove defendant's first motion for summary judgment. In ruling on that motion, this court found that there was federal question jurisdiction over the state claims. It was not necessary for the court at that time to address the issue of federal question jurisdiction over the state claims, however. Because the Timber Cove defendants' initial motion for summary judgment on the ADA claim was denied, the state claims would have remained in the case on either supplemental jurisdiction or federal question jurisdiction. Any pronouncement this court made in that previous order concerning federal question jurisdiction over the state claims is therefore dictum. Now that the issue is squarely before the court, it is clear that the court does not have federal question jurisdiction over the state law claims.
The fact that an ADA violation may serve as an element of a state law claim does not automatically confer federal question jurisdiction. Unlike the California Disabled Persons Act and the Unruh Civil Rights Act, both of which provide damages for violations, the only remedy available to a private plaintiff under the ADA is injunctive relief. 42 U.S.C. § 12188(a)(2). In Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 814, 106 S.Ct. 3229, 92 L.Ed.2d 650 (1986), the Supreme Court reasoned that a determination by Congress that there should be no federal remedy for the violation of a federal statute "is tantamount to a congressional conclusion that the presence of a claimed violation of the statute as an element of a state cause of action is insufficiently `substantial' to confer federal-question jurisdiction." Id.
Merrell Dow's reasoning was extended to a case brought under the ADA in Jairath v. Dyer, 154 F.3d 1280, 1281 (11th Cir.1998). There, the plaintiff filed a suit for damages in state court under a state
The Eleventh Circuit concluded that the district court erred in denying the remand motion, reasoning that the court did not have federal question jurisdiction over plaintiff's state suit. The appellate panel noted that the plaintiff could not have pursued injunctive relief under the ADA because he did not have standing, given that he did not express an intention to seek the defendant's services in the future. Id. at 1283 n. 7. Therefore, the only remedy available to the plaintiff was a private damage remedy which was not available under the ADA. The court reasoned that Congressional intent not to provide a damages remedy for an ADA violation suggests that Congress did not consider that such a violation would create a "substantial" federal question sufficient to confer federal jurisdiction. Id. (citing Merrell Dow, 478 U.S. at 814, 106 S.Ct. 3229).
In a recent Northern District of California case in which plaintiff is a party, Judge Illston applied Jairath and Merrell Dow to circumstances similar to those presented here. Pickern v. Stanton's Restaurant & Woodsman, No. C 01-2112 SI, 2002 WL 143817 (N.D.Cal. Jan. 29, 2002) (hereinafter "Pickern II"). The parties in that case settled the ADA claim, leaving the state claims for damages and attorney's fees outstanding. The court concluded that allegations of ADA violations as an element of a state claim for damages were insufficient to support federal question jurisdiction. See id. 2002 WL 143817, at *3.
Judge Illston's analysis in Pickern II is persuasive. Federal courts clearly have a strong interest in resolving disputed issues of federal law. See Merrell Dow, 478 U.S. at 828, 106 S.Ct. 3229 (Brennan, J., dissenting) ("[T]he possibility that the federal law will be incorrectly interpreted in the context of adjudicating cases involving federal questions [incorporated into state law] implicates the concerns that led Congress to grant the district courts power to adjudicate federal questions ...."). However, questions of damages will often involve issues wholly unrelated to the interpretation of the ADA. Damages for emotional distress, for example, require testimony regarding the effect of the defendant's actions on the plaintiff's mental and emotional health. Daily deterrence damages, which have been recognized by this court and others as a valid measure of damages under the ADA, see Loskot v. Lulu's Restaurant, No. Civ. S-00-1497 WBS PAN (E.D.Cal. Nov. 15, 2000); Arnold v. United Artists Theatre Circuit, Inc., 866 F.Supp. 433 (N.D.Cal.1994), require plaintiffs to prove that they were deterred on a particular occasion from attempting to attend a place of public accommodation. See id. This inquiry involves as much an examination of the plaintiff's mental state as it does an examination of the extent of the alleged ADA violations. Thus, the question of damages becomes the tail that wags the dog of the ADA issues. Though the ADA issues may be disputed, they are not "substantial" enough in the context of a claim for damages to confer federal question jurisdiction.
B. Supplemental Jurisdiction
Under 28 U.S.C. § 1367(c)(3), the court has discretion to dismiss state law claims when it has dismissed all of a plaintiff's federal claims. Plaintiff argues that this court should retain jurisdiction over the state claims because requiring plaintiff to re-file in state court will be inconvenient and will delay the case unnecessarily.
Factors for the court to consider in deciding whether to dismiss supplemental state claims include economy, convenience, fairness, and comity. Imagineering, Inc. v. Kiewit Pacific Co., 976 F.2d 1303, 1309 (9th Cir.1992) "[I]n the usual case in which federal law claims are eliminated before trial, the balance of factors ... will point toward declining to exercise jurisdiction over the remaining state law claims." Reynolds v. County of San Diego, 84 F.3d 1162, 1171 (9th Cir.1996) overruled on other grounds by Acri v. Varian Assoc.'s, Inc., 114 F.3d 999, 1000 (9th Cir.1997). Some circuits have held that a court may retain jurisdiction over state law claims if extraordinary or unusual circumstances justify their retention. See, e.g., Wentzka v. Gellman, 991 F.2d 423, 425 (7th Cir. 1993); Musson Theatrical, Inc. v. Federal Express Corp., 89 F.3d 1244, 1255 (6th Cir.1996).
While the court recognizes that litigation of a new suit in state court may create some inconvenience to plaintiff, plaintiff has made no showing of extraordinary or unusual circumstances. Accordingly, the court declines to exercise supplemental jurisdiction under 28 U.S.C. § 1367 as to the remaining state law claims.
IT IS THEREFORE ORDERED that:
(1) the Timber Cove defendants' motion for summary judgment, and First Resorts' motion to dismiss (which is properly characterized as a motion for summary judgment) be, and the same hereby are, GRANTED;
(2) the remaining state claims are DISMISSED pursuant to 28 U.S.C. § 1367(c);
(3) the Timber Cove defendants' motion for reconsideration of this court's order denying the initial summary judgment motion be, and the same hereby is, DENIED as moot.